Legislature(2003 - 2004)

03/01/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 342 - INCREASE DRIVING UNDER INFLUENCE PENALTY                                                                             
                                                                                                                                
Number 0388                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be  HOUSE  BILL  NO.  342,  "An Act  relating  to  driving  while                                                               
intoxicated; and providing  for an effective date."   [Before the                                                               
committee was Version 23-LS1292\H,  Luckhaupt, 2/23/04, which was                                                               
adopted as a  work draft and amended on 2/27/04;  left pending on                                                               
2/27/04 was  a motion  to adopt a  third amendment  to Conceptual                                                               
Amendment 2  - labeled 23-LS1292\D.1, Luckhaupt,  2/21/04 - which                                                               
had been amended twice on 2/27/04.]                                                                                             
                                                                                                                                
CHAIR McGUIRE  noted that new  amendments were  being distributed                                                               
to members.                                                                                                                     
                                                                                                                                
Number 0340                                                                                                                     
                                                                                                                                
The committee took an at-ease from 4:22 p.m. to 4:23 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG turned to  Conceptual Amendment 2 [D.1],                                                               
as amended, which, prior to being amended, read:                                                                                
                                                                                                                                
     Page 1, line 1:                                                                                                            
          Delete all material and insert:                                                                                       
          ""An Act relating to driving while under the                                                                        
     influence  and  to  the issuance  of  limited  drivers'                                                                  
     licenses; and providing for an effective date.""                                                                         
                                                                                                                                
     Page 1, following line 2:                                                                                                  
          Insert a new bill section to read:                                                                                    
        "* Section 1.  AS 28.15.201(d) is amended to read:                                                                  
          (d)  A court revoking a driver's license,                                                                             
     privilege to  drive, or privilege  to obtain  a license                                                                    
     under AS 28.15.181(c), or  the department when revoking                                                                    
     a driver's  license, privilege  to drive,  or privilege                                                                    
     to obtain  a license  under AS 28.15.165(c),  may grant                                                                    
     limited  license  privileges  [FOR THE  FINAL  60  DAYS                                                                    
     DURING WHICH THE LICENSE IS REVOKED] if                                                                                    
               (1)  the revocation was for a misdemeanor                                                                        
     conviction   under  AS 28.35.030(a)   and  not   for  a                                                                    
     violation of AS 28.35.032;                                                                                                 
               (2)  the person has not been previously                                                                          
     convicted  or,  if  the   person  has  been  previously                                                                
     convicted,  the court  or the  department requires  the                                                                
     person  to   use  an   ignition  interlock   device  as                                                                
     described  in AS 12.55.102  during  the  period of  the                                                                
     limited   license;  in   this  paragraph,   "previously                                                                
     convicted" has  the meaning  given in  AS 28.35.030 and                                                                    
     also includes convictions based  on laws presuming that                                                                    
     the  person was  under  the  influence of  intoxicating                                                                    
     liquor if there  was 0.08 percent or more  by weight of                                                                    
     alcohol in the person's blood;                                                                                             
               (3)  the court or the department determines                                                                      
     that the  person's ability to  earn a  livelihood would                                                                    
     be severely impaired without a limited license;                                                                            
               (4)  the court or the department determines                                                                      
     that  a limitation  under (a)  of this  section can  be                                                                    
     placed on  the license that  will enable the  person to                                                                    
     earn  a  livelihood  without excessive  danger  to  the                                                                    
     public; and                                                                                                                
               (5)  the court or the department determines                                                                      
     that the  person is  enrolled in  and is  in compliance                                                                    
     with,  or  has  successfully completed  the  alcoholism                                                                    
     screening,    evaluation,    referral,   and    program                                                                    
     requirements  of the  Department of  Health and  Social                                                                    
     Services under AS 28.35.030(h)."                                                                                           
                                                                                                                                
     Page 1, line 3:                                                                                                            
          Delete "Section 1"                                                                                                  
          Insert "Sec. 2"                                                                                                     
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
Number 0332                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted that  one of the  amendments that                                                               
was  made to  Conceptual Amendment  2 [D.1]  at the  bill's prior                                                               
hearing involved a title change  to include ", ignition interlock                                                               
devices,".                                                                                                                      
                                                                                                                                
CHAIR  McGUIRE   remarked  that   that  title  change   would  be                                                               
conceptual  in  order   to  allow  the  drafters   to  place  the                                                               
aforementioned language in the most suitable place.                                                                             
                                                                                                                                
REPRESENTATIVE   GRUENBERG  noted   that  another   amendment  to                                                               
Conceptual  Amendment  2  [D.1]   that  was  adopted  on  2/27/04                                                               
involved the inclusion of language  in AS 28.15.201(d)(3) and (4)                                                               
that would allow a limited  license to be granted for "compelling                                                               
health or safety reasons".                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG  went  on   to  note  that  [these  two                                                               
amendments] that  had been made  to Conceptual Amendment  2 [D.1]                                                               
on 2/27/04 had  not been incorporated into  the amendment labeled                                                               
23-LS1292\H.4,  Luckhaupt, 3/1/04,  which  members  now have  and                                                               
which read:                                                                                                                     
                                                                                                                                
     Page 1, lines 1 - 2:                                                                                                       
          Delete all material and insert:                                                                                       
          ""An Act relating to driving while under the                                                                        
     influence,  to  alcohol-related  offenses, and  to  the                                                                  
     issuance  of limited  drivers' licenses;  and providing                                                                  
     for an effective date.""                                                                                                 
                                                                                                                                
     Page 2, following line 23:                                                                                                 
          Insert a new bill section to read:                                                                                    
        "* Sec. 2.  AS 28.15.201(d) is amended to read:                                                                     
          (d)  A court revoking a driver's license,                                                                             
     privilege to  drive, or privilege  to obtain  a license                                                                    
     under AS 28.15.181(c), or  the department when revoking                                                                    
     a driver's  license, privilege  to drive,  or privilege                                                                    
     to obtain  a license  under AS 28.15.165(c),  may grant                                                                    
     limited  license  privileges  [FOR THE  FINAL  60  DAYS                                                                    
     DURING WHICH THE LICENSE IS REVOKED] if                                                                                    
               (1)  the revocation was for a misdemeanor                                                                        
     conviction   under  AS 28.35.030(a)   and  not   for  a                                                                    
     violation of AS 28.35.032;                                                                                                 
               (2)  the person (A) has not been previously                                                                  
     convicted  and the  court  or  department requires  the                                                                
     person  to   use  an   ignition  interlock   device  as                                                                
     described  in AS 12.55.102  during  the  period of  the                                                                
     limited  license  if  a  provider  for  the  device  is                                                                
     located within  100 miles of the  residence or domicile                                                                
     of the  person; or,  (B) has been  previously convicted                                                                
     and the court or the  department requires the person to                                                                
     use  an  ignition  interlock  device  as  described  in                                                                
     AS 12.55.102 during the period  of the limited license;                                                                
     in  this  paragraph,  "previously  convicted"  has  the                                                                    
     meaning  given   in  AS 28.35.030  and   also  includes                                                                    
     convictions  based on  laws presuming  that the  person                                                                    
     was  under  the  influence of  intoxicating  liquor  if                                                                    
     there was 0.08 percent or  more by weight of alcohol in                                                                    
     the person's blood;                                                                                                        
               (3)  the court or the department determines                                                                      
     that the  person's ability to  earn a  livelihood would                                                                    
     be severely impaired without a limited license;                                                                            
               (4)  the court or the department determines                                                                      
     that  a limitation  under (a)  of this  section can  be                                                                    
     placed on  the license that  will enable the  person to                                                                    
     earn  a  livelihood  without excessive  danger  to  the                                                                    
     public; and                                                                                                                
               (5)  the court or the department determines                                                                      
     that the  person is  enrolled in  and is  in compliance                                                                    
     with,  or  has  successfully completed  the  alcoholism                                                                    
     screening,    evaluation,    referral,   and    program                                                                    
      requirements of the Department of Health and Social                                                                       
     Services under AS 28.35.030(h)."                                                                                           
                                                                                                                                
     Renumber the following bill sections accordingly.                                                                          
                                                                                                                                
     Page 5, line 29, following "Act":                                                                                          
          Insert ", except that references to prior                                                                             
         convictions include those occurring before the                                                                         
     effective date of this Act."                                                                                               
                                                                                                                                
CHAIR  McGUIRE  suggested  to Representative  Gruenberg  that  he                                                               
withdraw [those  two amendments] to Conceptual  Amendment 2 [D.1]                                                               
and offer [them  as new amendments] to the  amendment labeled 23-                                                               
LS1292\H.4, Luckhaupt, 3/1/04,  which was later referred  to as a                                                               
Amendment 2 [H.4].                                                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his  recollection that  [those                                                               
amendments]  to Conceptual  Amendment  2 [D.1]  had already  been                                                               
adopted and he  merely wanted [them] to be  included in Amendment                                                               
2 [H.4].   He noted that the change  regarding "compelling health                                                               
or safety reasons" would still go to AS 28.15.201(d)(3) and (4)                                                                 
                                                                                                                                
Number 0220                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE moved  that the  committee rescind  its action  in                                                               
adopting  the [amendments]  to Conceptual  Amendment 2  [D.1] for                                                               
the purpose  of addressing new  amendments to Amendment  2 [H.4].                                                               
There being no objection, the committee rescinded its action.                                                                   
                                                                                                                                
[Although no  further discussion took place  regarding adding, ",                                                               
ignition interlock devices,"  to the title, and  no formal motion                                                               
was  made to  amend Amendment  2 [H.4]  in this  fashion, such  a                                                               
change was incorporated into CSHB 342(JUD).]                                                                                    
                                                                                                                                
Number 0150                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  [made a  motion to adopt]  an amendment                                                               
to Amendment  2 [H.4]  such that in  AS 28.15.201(d)(3)  and (4),                                                               
after  the language  pertaining to  "livelihood", the  words, "or                                                               
that there  are other  compelling health  or safety  reasons that                                                               
require the issuance of a limited license" would be added.                                                                      
                                                                                                                                
Number 0095                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  objected for  the purpose  of discussion.                                                               
He indicated  that he was  concerned with  how far they  would be                                                               
opening  up the  door  for repeat  offenders,  and asked  whether                                                               
health problem would be defined.                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG noted that  at the bill's prior hearing,                                                               
during  discussion of  Conceptual Amendment  2 [D.1],  the issues                                                               
surrounding  his  current  amendment  to Amendment  2  [H.4]  had                                                               
already been  debated.   He reminded members  that at  that prior                                                               
meeting,  the  proposed  change  now  before  the  committee  was                                                               
adopted to Conceptual  Amendment 2 [D.1]; he  was merely offering                                                               
the language  again in  the form  of an  amendment as  a courtesy                                                               
because the committee now has before it Amendment 2 [H.4].                                                                      
                                                                                                                                
CHAIR McGUIRE concurred and recapped  some of the debate from the                                                               
bill's prior hearing.                                                                                                           
                                                                                                                                
REPRESENTATIVE   OGG   suggested  that   perhaps   Representative                                                               
Samuels's specific  concerns with  this language change  were not                                                               
debated at the bill's prior hearing.                                                                                            
                                                                                                                                
TAPE 04-32, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG acknowledged  that at  the time  of the                                                               
original debate on the language  change now being considered, the                                                               
committee had not  yet began its discussion  regarding first time                                                               
offenders versus repeat  offenders.  He said he would  not have a                                                               
problem if the  committee would like to limit  the application of                                                               
the language in the amendment to  Amendment 2 [H.4] to just first                                                               
time offenders.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  SAMUELS relayed  that he  did not  want to  allow                                                               
judges  too  much discretion  to  give  repeat offenders  limited                                                               
licenses.                                                                                                                       
                                                                                                                                
CHAIR  McGUIRE, in  response to  a question,  clarified that  the                                                               
committee was  now considering whether  to adopt an  amendment to                                                               
Amendment  2  [H.4]  regarding   granting  limited  licenses  for                                                               
compelling  health  or  safety  reasons.    She  asked  that  any                                                               
amendments to amendments be conceptual  for the purpose of giving                                                               
the drafter  the latitude  of inserting  them in  the appropriate                                                               
locations.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he  would  consider limiting  the                                                               
application of the  amendment to Amendment 2 [H.4]  to just first                                                               
time offenders to be a friendly amendment.                                                                                      
                                                                                                                                
CHAIR McGUIRE ascertained that such  a change to the [conceptual]                                                               
amendment to  Amendment 2 [H.4]  was acceptable to  members; thus                                                               
the conceptual  amendment to Amendment  2 [H.4] would  apply only                                                               
to first time offenders.                                                                                                        
                                                                                                                                
Number 0181                                                                                                                     
                                                                                                                                
REPRESENTATIVE SAMUELS  removed his  objection to  the conceptual                                                               
amendment to Amendment 2 [H.4].                                                                                                 
                                                                                                                                
CHAIR  McGUIRE,  in  response   to  a  question,  confirmed  that                                                               
Amendment 1 to Version H of  HB 342 involved the deletion of, "or                                                           
by  the commissioner  of administration"  from page  2, line  20.                                                           
[Amendment 1  was adopted  on 2/27/04.]   She clarified  that the                                                               
committee  was  now considering  Amendment  2  [H.4] in  lieu  of                                                               
Conceptual Amendment 2 [D.1].                                                                                                   
                                                                                                                                
Number 0199                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE   relayed  that  the  [conceptual]   amendment  to                                                               
Amendment 2 [H.4] was adopted.                                                                                                  
                                                                                                                                
REPRESENTATIVE    OGG   turned    attention   to    proposed   AS                                                               
28.15.201(d)(2)(B) - located  in Amendment 2 [H.4],  as amended -                                                               
which  pertains to  repeat offenders.   He  said he  thinks there                                                               
ought to  be a limitation  on the number of  previous convictions                                                               
one may  have during a certain  period of time and  still qualify                                                               
for a limited license under this provision.                                                                                     
                                                                                                                                
The committee took an at-ease from 4:35 p.m. to 4:36 p.m.                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG  observed that there are  three criteria                                                               
in  Amendment 2  [H.4], as  amended, to  consider:   "Number one,                                                               
whether this is a first  conviction; number two, whether there is                                                               
an ignition interlock  on the vehicle; and  number three, whether                                                               
the limited license  is going to be allowed only  for the last 60                                                               
days  of  the  suspension."    Under current  law,  there  is  no                                                               
provision for ignition interlocks, a  limited license may only be                                                               
granted  in  instances  of  a first  conviction,  and  a  limited                                                               
license  may only  be  granted  during the  final  60  days of  a                                                               
revocation period.  He noted  that Amendment 2 [H.4], as amended,                                                               
removes  the  60-day  stipulation   and  requires  a  first  time                                                               
offender to  use an  ignition interlock.   He offered  his belief                                                               
that Amendment  2 [H.4], as  amended, should be altered  to allow                                                               
someone without  any prior convictions  to get a  limited license                                                               
during the final 60 days without having an ignition interlock.                                                                  
                                                                                                                                
CHAIR McGUIRE noted that under  Amendment 2 [H.4], as amended, if                                                               
a person does not have any  prior convictions and lives more than                                                               
100 miles from  a provider of ignition  interlock devices, he/she                                                               
does  not have  to  have an  ignition interlock  in  order to  be                                                               
granted  a  limited  license at  anytime  during  the  revocation                                                               
period.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  noted, however, that under  Amendment 2                                                               
[H.4],  as  amended, if  a  person  without previous  convictions                                                               
lives within 100  miles of a ignition  interlock provider, he/she                                                               
will have to have an ignition  interlock in order to be granted a                                                               
limited license.                                                                                                                
                                                                                                                                
CHAIR  McGUIRE  offered her  understanding  that  this aspect  of                                                               
Amendment 2 [H.4],  as amended, was a policy  change supported by                                                               
the  committee at  the  bill's last  hearing;  the policy  change                                                               
being that  "even [on]  your first offense,  if you  lived within                                                               
100 miles of  a provider of an interlock, we  would prefer you to                                                               
use the interlock."                                                                                                             
                                                                                                                                
Number 0600                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG remarked that  he might have missed that                                                               
point during  their discussion of  Conceptual Amendment  2 [D.1].                                                               
He went on to say:                                                                                                              
                                                                                                                                
     I would  like to  see us  retain the  current law  on a                                                                    
     policy basis  and for another  reason also:   because I                                                                    
     think there's a  denial of equal protection.  ... And I                                                                    
     suppose a court could say,  "There's no denial of equal                                                                    
     protection because it's  a rational basis:   if you can                                                                    
     do it,  ... the legislature wants  you to do it."   But                                                                    
     ... my gut feeling is that  it would not be that simple                                                                    
     by the time a court got through with it.                                                                                   
                                                                                                                                
[Chair McGuire turned the gavel over to Representative Samuels.]                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  offered   a  hypothetical  example  of                                                               
someone who lives on Kodiak  Island with Homer having the nearest                                                               
ignition interlock  device provider.   Although Kodiak  Island is                                                               
technically  within 100  miles of  Homer, it  would be  virtually                                                               
impossible to  comply with this  provision of Amendment  2 [H.4],                                                               
as  amended,  he  remarked.     Therefore,  to  have  to  draw  a                                                               
geographical distinction based on just  a compass radius could be                                                               
problematic.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GARA remarked  that they  would probably  have to                                                               
change  the language  to  "100  road miles"  just  to avoid  that                                                               
circumstance.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SAMUELS  agreed  that  that phrase  ought  to  be                                                               
worked on.   He remarked,  however, that the underlying  issue is                                                               
that  they  are changing  the  law  regarding ignition  interlock                                                               
devices  such that  it will  be dependant  on what  an offender's                                                               
blood alcohol concentration [BAC] level is.                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG  relayed that  his intent  regarding his                                                               
discussion of the  language in Amendment 2 [H.4],  as amended, is                                                               
to focus  on the issue  of those offenders  who don't have  a BAC                                                               
level over .16.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  SAMUELS  remarked,  however, that  according  his                                                               
understanding,  the language  in Amendment  2 [H.4],  as amended,                                                               
won't apply to those that don't have a BAC level over .16.                                                                      
                                                                                                                                
Number 0766                                                                                                                     
                                                                                                                                
CODY  RICE,  Staff to  Representative  Carl  Gatto, Alaska  State                                                               
Legislature,   sponsor,  offered   his  belief,   on  behalf   of                                                               
Representative   Gatto,   that    Representative   Gruenberg   is                                                               
attempting to  address the  issue of  those individuals  that are                                                               
not required  to use  an ignition  interlock, for  example, first                                                               
time offenders  with a BAC level  lower than .16.   Currently, he                                                               
opined, those  individuals would not  be affected by  Amendment 2                                                               
[H.4], as  amended, and  would thus be  precluded from  seeking a                                                               
limited license.                                                                                                                
                                                                                                                                
REPRESENTATIVE HOLM asked whether  equal protection clauses apply                                                               
to privileges in the same way they do to rights.                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG opined  that they would apply  to even a                                                               
privilege if  the distinction  is on a  geographic basis  that is                                                               
improperly drawn; he  noted, however, that "it's not  as strict a                                                               
standard if it's not a right."                                                                                                  
                                                                                                                                
REPRESENTATIVE HOLM  pondered whether the  issue is one  of equal                                                               
protection or one of equal access.                                                                                              
                                                                                                                                
REPRESENTATIVE GRUENBERG recalled in  that a [U.S.] Supreme Court                                                               
case, Shapiro V. Thompson (ph),  it was ruled that basing whether                                                             
or not  one could obtain welfare  payments on how long  one lived                                                               
in a particular area was a violation of equal protection.                                                                       
                                                                                                                                
REPRESENTATIVE  OGG remarked  that  the language  in Amendment  2                                                               
[H.4], as  amended, pertaining to  multiple offenders  appears to                                                               
be  more  lenient  because  there  is  no  geographical  distance                                                               
limitation.   He opined that  the language in Amendment  2 [H.4],                                                               
as amended, was put together wrong.                                                                                             
                                                                                                                                
MR. RICE said that according  to his understanding of Amendment 2                                                               
[H.4],  as amended,  the intention  is to  allow those  offenders                                                               
that are  not egregious  offenders to  pursue a  limited license,                                                               
and that was  why the 100-mile distinction was  inserted into the                                                               
provision pertaining  to first  time offenders  and not  into the                                                               
provision pertaining to multiple offenders.   Not having the 100-                                                               
mile  distinction   in  the  provision  pertaining   to  multiple                                                               
offenders  is intended  to prevent  a loophole  that would  allow                                                               
multiple offenders  in rural  areas to  obtain a  limited license                                                               
simply  because  they  hadn't access  to  an  ignition  interlock                                                               
provider.                                                                                                                       
                                                                                                                                
Number 1000                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  noted that  in the  provision in  Amendment 2                                                               
[H.4],  as  amended,  pertaining  to first  time  offenders,  the                                                               
language   in   proposed    AS   28.15.201(d)(2)(A),   does   not                                                               
specifically address  those first  time offenders that  live more                                                               
than 100 miles from an ignition interlock provider.                                                                             
                                                                                                                                
REPRESENTATIVE  GRUENBERG offered  his  belief  that those  first                                                               
time offenders are addressed by implication.                                                                                    
                                                                                                                                
REPRESENTATIVE OGG opined that addressing  them by implication is                                                               
not sufficient.                                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  posited that it  is simply a  matter of                                                               
drafting style.                                                                                                                 
                                                                                                                                
REPRESENTATIVE  OGG   offered  his  belief  that   regardless  of                                                               
drafting style,  the language in  Amendment 2 [H.4],  as amended,                                                               
does not clearly state the intent.                                                                                              
                                                                                                                                
[Representative Samuels returned the gavel to Chair McGuire.]                                                                   
                                                                                                                                
REPRESENTATIVE   GRUENBERG   offered   that  according   to   his                                                               
understanding of  the drafting manual, the  language in Amendment                                                               
2  [H.4], as  amended, sufficiently  outlines by  implication the                                                               
intent  towards  first time  offenders  living  further than  100                                                               
miles from an ignition interlock provider.                                                                                      
                                                                                                                                
CHAIR McGUIRE opined  that the language in Amendment  2 [H.4], as                                                               
amended, is  clear and  comports with the  drafting manual.   She                                                               
offered  her interpretation  of  Amendment 2  [H.4], as  amended:                                                               
"If this is your first offense,  you can apply to get a [limited]                                                               
driver's license, but you have to  use an interlock device if ...                                                               
a provider  is within 100 miles."   She again requested  that any                                                               
amendments to Amendment  2 [H.4], as amended,  be conceptual, and                                                               
suggested that  the committee focus  first on the issue  of first                                                               
time  offenders.   She noted  that  Representative Gruenberg  has                                                               
expressed concern with  how first time offenders  will be treated                                                               
under Amendment  2 [H.4], as  amended, and that current  law says                                                               
that first  time offenders may  get a [limited]  license, without                                                               
having  to  have  an  interlock  device,  if  they  meet  certain                                                               
requirements.  In contrast, under  Amendment 2 [H.4], as amended,                                                               
a  first  time  offender  must  have an  interlock  device  if  a                                                               
provider is  located within 100 miles.   She suggested, as  a way                                                               
of  keeping the  process moving,  that members  in opposition  to                                                               
that  provision  offer  a conceptual  amendment  to  Amendment  2                                                               
[H.4], as amended, to change the  language back to how first time                                                               
offenders are treated currently.                                                                                                
                                                                                                                                
Number 1227                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  made  a   motion  to  adopt  a  second                                                               
amendment, which  would be conceptual,  to Amendment 2  [H.4], as                                                               
amended, "To allow a first [time]  offender to be given a limited                                                               
license -  as we've stated,  for livelihood or  compelling health                                                               
and safety  reasons - without  an ignition interlock  only during                                                               
the last 60 days the license  is revoked; in other words, to keep                                                               
that as an option as it is in current law."                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG, in response  to a question, offered his                                                               
understanding that the second amendment  to Amendment 2 [H.4], as                                                               
amended,  when  considered in  terms  of  how  it will  fit  into                                                               
Version H  - specifically page  5, line 9  - would only  apply to                                                               
first time offenders who have a BAC limit below .16.                                                                            
                                                                                                                                
REPRESENTATIVE  GARA said  he  thinks Representative  Gruenberg's                                                               
interpretation is incorrect.  He elaborated:                                                                                    
                                                                                                                                
     These are  two different circumstances.   The main part                                                                    
     of  the bill  that Representative  Gatto brought  to us                                                                    
     applies after your  conviction, after you're sentenced,                                                                    
     after  your license  is returned  to you.   After  your                                                                    
     license is  returned to you,  if you [have a  BAC level                                                                    
     that is]  high, you  have to  use an  interlock device.                                                                    
     [Amendment  2  H.4,  as amended,]  applies  before  the                                                                    
     period [that]  your license  revocation expires  - this                                                                    
     applies if  you want your  license back early -  and so                                                                    
     this,  therefore, applies  to  everybody regardless  of                                                                    
     [their BAC level].                                                                                                         
                                                                                                                                
     This limited  license provision ...  says the  court is                                                                    
     saying  to you,  "I'm going  to give  you your  license                                                                    
     back  in advance  of when  you would  otherwise get  it                                                                    
     back"  for  work-related  reasons  or  whatever.    The                                                                    
     [provision in the  bill that is based  on someone's BAC                                                                    
     level]  only applies  after you  get your  license back                                                                    
     under  the  normal  schedule.   [Amendment  2  H.4,  as                                                                    
     amended]  is  the   early-license  provision,  so  this                                                                    
     applies to everybody.  And  a court, in its discretion,                                                                    
     could deny you the  early limited license because [your                                                                    
     BAC  level] is  .30,  ... but  the  [BAC] levels  don't                                                                    
     apply to this early license.                                                                                               
                                                                                                                                
CHAIR McGUIRE noted that the  provisions encompassed in Amendment                                                               
2 [H.4],  as amended, do  contain sidebars:  for  example, before                                                               
the court can  grant a limited license, it has  to determine that                                                               
the person  won't pose excessive  danger to the public;  that the                                                               
license revocation  has to be  for a misdemeanor  conviction; and                                                               
that  the license  revocation cannot  be  for a  violation of  AS                                                               
28.35.032 - refusal to submit to chemical test.                                                                                 
                                                                                                                                
Number 1422                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE asked  whether there  were any  objections to  the                                                               
second amendment to  Amendment 2 [H.4], as amended.   There being                                                               
none, the second amendment to  Amendment 2 [H.4], as amended, was                                                               
adopted.                                                                                                                        
                                                                                                                                
CHAIR  McGUIRE suggested  that the  committee next  focus on  the                                                               
provisions  of  [Amendment  2  H.4],  as  amended,  that  address                                                               
offenders   with  previous   convictions.      She  offered   her                                                               
understanding  that   as  long  as  an   offender  with  previous                                                               
convictions  meets  all the  criteria  laid  out in  proposed  AS                                                               
28.15.201.(d), then he/she  may be granted a  limited license but                                                               
only if he/she gets an ignition interlock device.                                                                               
                                                                                                                                
[Following  was a  brief  discussion of  the  amendments made  to                                                               
Amendment 2  H.4 thus far and  the changes that Amendment  2 H.4,                                                               
as amended, will have to current law.]                                                                                          
                                                                                                                                
CHAIR McGUIRE  suggested that  they remove  all reference  to the                                                               
100-mile  stipulation, surmising  that  doing so  would give  the                                                               
courts the  discretion of  whether or not  to require  first time                                                               
offenders to get an ignition interlock  in order to get a limited                                                               
license, but would  require that those with  prior convictions do                                                               
have to get an ignition interlock device.                                                                                       
                                                                                                                                
REPRESENTATIVE  OGG remarked  that those  with prior  convictions                                                               
appear  to be  able  to  gain the  same  benefits  as first  time                                                               
offenders.  He opined that there  ought to be "a larger step" for                                                               
those with previous convictions.                                                                                                
                                                                                                                                
Number 1871                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GARA  offered   that   the   provisions  in   AS                                                               
28.15.201(d)(2), located in Amendment 2  [H.4], as amended, could                                                               
be altered to work as follows:                                                                                                  
                                                                                                                                
     If  we want  to delete  the 100-mile  [stipulation], we                                                                    
     say, "If  you have not been  previously convicted," for                                                                    
     the  person whose  first conviction  this  is, "in  the                                                                    
     final 60  days the court  has the discretion to  give a                                                                    
     [limited  license] ...  without  an interlock  device."                                                                    
     That was Representative  Gruenberg's [second] amendment                                                                    
     to the  amendment.  The  court also has  the discretion                                                                    
     to  give it  to you  earlier if  -- and  the court  may                                                                    
     order  that you  have  an interlock  device, and  we're                                                                    
     saying  the   court  "may"  order  that   you  have  an                                                                    
     interlock  device because  you  might live  in a  place                                                                    
     where one's not  available and we're going  to leave it                                                                    
     to  [the] court  to say  whether or  not you  need one.                                                                    
     But   then,  ...   for  the   people  with   the  prior                                                                    
     convictions, you have to have  an interlock device, and                                                                    
     if one's not available, it's  just tough, we just don't                                                                    
     trust you well  enough to let you  drive around without                                                                    
     an interlock device.                                                                                                       
                                                                                                                                
REPRESENTATIVE   ANDERSON   indicated    that   such   would   be                                                               
satisfactory to him.                                                                                                            
                                                                                                                                
REPRESENTATIVE GARA noted again that  the courts would then still                                                               
have the  discretion to grant a  limited license to a  first time                                                               
offender  before  the  last  60 days  of  the  revocation  period                                                               
without requiring an  ignition interlock device.   In contrast, a                                                               
person  with  previous convictions  might  be  granted a  limited                                                               
license before the last 60 days  of a revocation period, but only                                                               
if he/she gets an ignition interlock device.                                                                                    
                                                                                                                                
REPRESENTATIVE OGG suggested also  allowing someone with previous                                                               
convictions  to  get  a  limited   license  without  an  ignition                                                               
interlock  device  but only  during  the  final  60 days  of  the                                                               
revocation period.                                                                                                              
                                                                                                                                
REPRESENTATIVE  ANDERSON opined  that doing  so would  defeat the                                                               
purpose [of  Amendment 2 H.4,  as amended] and indicated  that he                                                               
would  be opposed  to  such a  change to  Amendment  2 [H.4],  as                                                               
amended,  because  ignition  interlock devices  will  afford  the                                                               
public  an extra  measure  of  safety from  those  who have  been                                                               
previously convicted.                                                                                                           
                                                                                                                                
REPRESENTATIVE OGG  opined that  those with  previous convictions                                                               
should have some period of time wherein they cannot drive.                                                                      
                                                                                                                                
REPRESENTATIVE   ANDERSON    asked   Chair   McGuire    for   her                                                               
interpretation  of  Representative  Gara's suggested  changes  to                                                               
Amendment 2 [H.4], as amended.                                                                                                  
                                                                                                                                
Number 2061                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE   said  she  agrees  with   Representative  Gara's                                                               
suggested   changes:     It   would  incorporate   Representative                                                               
Gruenberg's second  amendment to  Amendment 2 [H.4],  as amended;                                                               
it  would provide  a second  tier for  first time  offenders such                                                               
that  the court  would have  the  discretion to  grant a  limited                                                               
license  and may  or  may  not require  the  use  of an  ignition                                                               
interlock device; and it would  allow the court, if it determines                                                               
that all other requirements of  AS 28.15.201(d) are met, to grant                                                               
a limited license  to those with previous convictions  as long as                                                               
an ignition interlock device is used.                                                                                           
                                                                                                                                
Number 2113                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG turned  attention  to  the phrase,  "as                                                               
described in  AS 12.55.102", which  is used twice in  Amendment 2                                                               
[H.4], as amended.  He made  a motion to amend Amendment 2 [H.4],                                                               
as  amended,  such  that,  "as  described  in  AS  12.55.102"  is                                                               
deleted.  He then withdrew that motion.                                                                                         
                                                                                                                                
Number 2260                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  made a  motion to adopt  a third  amendment, which                                                               
would be conceptual, to Amendment  2 [H.4], as amended, such that                                                               
Representative Gara's  suggestion be  incorporated:   In addition                                                               
to  including  Representative  Gruenberg's  second  amendment  to                                                               
Amendment 2  [H.4], as  amended, it would  provide a  second tier                                                               
for  first time  offenders such  that  the court  would have  the                                                               
discretion to grant a limited license  before the last 60 days of                                                               
a revocation  period and  may or  may not require  the use  of an                                                               
ignition interlock  device, and it  would allow the court,  if it                                                               
determines  that all  other requirements  of AS  28.15.201(d) are                                                               
met,  to  grant   a  limited  license  to   those  with  previous                                                               
convictions  as long  as an  ignition interlock  device is  used.                                                               
She indicated that this third  amendment to Amendment 2 [H.4], as                                                               
amended, would be applicable to proposed AS 28.15.201(d)(2).                                                                    
                                                                                                                                
Number 2278                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG objected.                                                                                                    
                                                                                                                                
[This  third  amendment  to  Amendment 2  H.4,  as  amended,  was                                                               
treated as adopted,  and the issue of whether  to adopt Amendment                                                               
2 H.4, as amended, became the  subject of the following roll call                                                               
vote.]                                                                                                                          
                                                                                                                                
Number 2290                                                                                                                     
                                                                                                                                
A roll  call vote  was taken.   Representatives  Gara, Gruenberg,                                                               
Anderson, and  McGuire voted  in favor of  Amendment 2  [H.4], as                                                               
amended.   Representatives Samuels,  Ogg, and Holm  voted against                                                               
it.  Therefore,  Amendment 2 [H.4], as amended, was  adopted by a                                                               
vote of 4-3.                                                                                                                    
                                                                                                                                
Number 2350                                                                                                                     
                                                                                                                                
REPRESENTATIVE GARA  made a  motion to  adopt Amendment  3, which                                                               
read [original punctuation provided]:                                                                                           
                                                                                                                                
     Page 5 line 14-15, after "the person's breath,"                                                                            
                                                                                                                                
       Delete:  "the court shall double the fine imposed                                                                        
     under (b)(1) or (n)(1) of this section"                                                                                    
                                                                                                                                
           Insert: "the court shall increase the fine                                                                           
     imposed under (b)(1) or (n)(1) of this section by the                                                                      
     lesser of one-third or $500"                                                                                               
                                                                                                                                
                                                                                                                                
     Page 5 line 21-22, after ""the person's breath,"                                                                           
                                                                                                                                
       Delete:  "the court shall triple the fine imposed                                                                        
     under (b)(1) or (n)(1) of this section"                                                                                    
                                                                                                                                
          Insert:  "the court shall increase the fine                                                                           
     imposed under (b)(1) or (n)(1) of this section by the                                                                      
     lesser of one-half or $1,000"                                                                                              
                                                                                                                                
Number 2354                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
                                                                                                                                
REPRESENTATIVE  GARA   said  that   Amendment  3   addresses  the                                                               
provisions in HB 342 related to  doubling and tripling fines.  He                                                               
outlined the changes which have  recently occurred to the current                                                               
schedule of fines.                                                                                                              
                                                                                                                                
TAPE 04-32, SIDE B                                                                                                            
Number 2393                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GARA  went  on  to   detail  some  of  the  fines                                                               
currently in place.   Given that the amount someone  may be fined                                                               
varies  depending   upon  aggravators,  he  said   he  is  having                                                               
difficulty  determining just  how  much a  fine might  ultimately                                                               
wind up  being, since the language  in HB 342 merely  talks about                                                               
doubling and tripling fines and  would therefore be requiring the                                                               
court to  double or triple an  indeterminate amount.  He  said he                                                               
thinks it improper  to double and in some cases  triple the fines                                                               
that  are currently  in  place  given that  they  were only  just                                                               
recently raised  to their present  levels, which, he  opined, are                                                               
very high.   He offered  his belief  that the courts  are already                                                               
providing  for higher  fines in  cases where  there are  high BAC                                                               
levels, and characterized  Amendment 3 as a  compromise that will                                                               
provide  for a  modest  increase in  fines for  such  cases.   He                                                               
concluded  by  recapping the  language  in  Amendment 3,  and  by                                                               
relaying that doubling or in  some cases tripling a $50,000 fine,                                                               
for example, seems too extreme to him.                                                                                          
                                                                                                                                
MR.  RICE  surmised  that  the   question  of  whether  to  adopt                                                               
Amendment 3  comes down to  a policy  call.  He  opined, however,                                                               
that the  courts would assign a  $50,000 fine and triple  it only                                                               
in cases where they realistically  thought it could be collected.                                                               
"It seems  fair to assume that  the judges would be  aware of the                                                               
fact that  the fines that  they were assigning could  be tripled,                                                               
and  would possibly  reduce  them  as such,  but  they could  not                                                               
reduce them below the minimums," he added.                                                                                      
                                                                                                                                
REPRESENTATIVE HOLM said:                                                                                                       
                                                                                                                                
      I'm curious as to why we're doing this, and I think                                                                       
     Representative Gara makes a good point.  Are we trying                                                                     
     to penalize?   Are we trying to keep  people from doing                                                                    
     these egregious acts?  Are  we trying to maybe just get                                                                    
     money for  the state?  If  the reason is to  change the                                                                    
     fine based  upon the ability  to pay, I think  it's bad                                                                    
     public policy  because the act has  no relationship, in                                                                    
     my opinion, [with]  whether or not you  have an ability                                                                    
     to pay  ....  If  you perform an egregious  act against                                                                    
     society, [the  penalty] should have nothing  to do with                                                                    
     whether you're rich, poor, or indifferent.                                                                                 
                                                                                                                                
REPRESENTATIVE HOLM indicated  that he does not  have any problem                                                               
with  raising the  fines  as  a punitive  measure,  as  a way  of                                                               
telling  people that  if  they  are going  to  act  in a  certain                                                               
fashion then certain penalties will  attach, but he does not want                                                               
to give the court  the discretion to say how much  a fine will be                                                               
based on  its perception of  whether someone has any  assets that                                                               
can be confiscated.                                                                                                             
                                                                                                                                
MR. RICE  said he  was merely trying  to allay  members' concerns                                                               
that doubling or tripling fines might  pose too large a burden on                                                               
working families,  adding that he  believes that the  courts will                                                               
take that sort of thing into account.                                                                                           
                                                                                                                                
REPRESENTATIVE SAMUELS said  he feels that having a  BAC level of                                                               
.08  and having  a  BAC  level of  .30  are completely  different                                                               
crimes,  and opined  that  the fines  ought  to be  significantly                                                               
higher for those individuals who  have a higher BAC level because                                                               
they pose a greater danger.                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG suggested  that the language on  page 5, lines                                                               
14-15 and  21-22, after  "breath," ought to  be changed  to read,                                                               
"the minimum fine imposed under  (b)(1) or (n)(1) of this section                                                               
shall be  doubled", and, "the  minimum fine imposed  under (b)(1)                                                               
or (n)(1)  of this section  shall be tripled", respectively.   He                                                               
opined that doing so would  eliminate any ambiguity regarding the                                                               
amount of the fines that are  to be doubled or tripled, and would                                                               
still allow the courts the discretion to impose higher fines.                                                                   
                                                                                                                                
Number 2062                                                                                                                     
                                                                                                                                
REPRESENTATIVE  OGG made  a motion  to  adopt the  forgoing as  a                                                               
conceptual amendment.                                                                                                           
                                                                                                                                
CHAIR McGUIRE announced that that  motion is out of order because                                                               
the  committee still  has before  it the  question of  whether to                                                               
adopt Amendment 3.                                                                                                              
                                                                                                                                
REPRESENTATIVE GARA mentioned  that his concern is  not about the                                                               
burden on working families so much  as it is about coming up with                                                               
a fine  that reflects  the crime,  which is  [DUI].   A potential                                                               
$150,000 fine  for a [DUI]  is just way  out of line,  he opined,                                                               
adding that  his main  concern is  whether doubling  and tripling                                                               
fines is [reasonable].                                                                                                          
                                                                                                                                
Number 2034                                                                                                                     
                                                                                                                                
A roll  call vote  was taken.   Representatives  Gara, Gruenberg,                                                               
Anderson,  Holm,  and McGuire  voted  in  favor of  Amendment  3.                                                               
Representatives  Ogg and  Samuels voted  against it.   Therefore,                                                               
Amendment 3 was adopted by a vote of 5-2.                                                                                       
                                                                                                                                
REPRESENTATIVE GRUENBERG  surmised that  it will take  everyone a                                                               
certain amount of  time to conform to the  changes encompassed in                                                               
HB 342,  and suggested that  the bill  ought to have  a different                                                               
effective date.                                                                                                                 
                                                                                                                                
Number 1939                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG made  a  motion to  adopt Amendment  4,                                                               
which read:                                                                                                                     
                                                                                                                                
     Page 5, line 30:                                                                                                           
          Delete "July 1, 2004"                                                                                                 
          Insert "January 1, 2005"                                                                                              
                                                                                                                                
Number 1931                                                                                                                     
                                                                                                                                
CHAIR McGUIRE objected for the purpose of discussion.                                                                           
                                                                                                                                
MR. RICE said  that Amendment 4 mirrors an  amendment provided by                                                               
the sponsor.                                                                                                                    
                                                                                                                                
Number 1910                                                                                                                     
                                                                                                                                
CHAIR McGUIRE removed her objection  and asked whether there were                                                               
any  further  objections  to  Amendment 4.    There  being  none,                                                               
Amendment 4 was adopted.                                                                                                        
                                                                                                                                
Number 1908                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG  moved to report  the proposed CS for  HB 342,                                                               
Version  23-LS1292\H,  Luckhaupt,  2/23/04, as  amended,  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
fiscal notes.  There being no objection, CSHB 342(JUD) was                                                                      
reported from the House Judiciary Standing Committee.                                                                           

Document Name Date/Time Subjects